214 P. 487 | Cal. Ct. App. | 1923
By filing in the office of the county clerk of Tehama County written grounds of opposition to the probate thereof, John H. Gurnsey, on February 27, 1922, initiated a contest of the will of Harriet A. Gurnsey, deceased. On March 8th following, respondents filed an answer to said written opposition. On April 3d the contest was set for trial on May 31, 1922, contestant then demanding a jury. The cause came on regularly for trial on said May 31st and respondents announced themselves ready to proceed. Contestant, however, asked permission to file an amended contest, but this was denied by the court. Whereupon contestant *179 moved for a dismissal of the action, and judgment of dismissal and for costs was rendered as follows:
"John H. Gurnsey having on the 27th day of February, 1922, filed in writing his contest of the Will of Harriet A. Gurnsey, deceased, and Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey, named in said Will as legatees and devisees having filed their answer to said contest, and the said contest having been set for trial for May 31, 1922, at 10 o'clock A. M. of said day, and said matter coming on for trial at said time, McCoy Gans and W. P. Johnson, attorneys for Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey, announced that they were ready for the trial and James T. Matlock, attorney for the contestant, asked the court for leave to file an amended contest to said Will, which request the Court denied whereupon contestant by his said attorney asked the court to dismiss the contest at contestant's costs.
"Wherefore, it is ordered, adjudged and decreed that the said contest by John H. Gurnsey of the probate of the Will of Harriet A. Gurnsey, deceased be and the same is, dismissed, and it is ordered, adjudged and decreed, that Phoebe E. Mills, Juliette Sykes and Mary J. Wiltsey recover from said John H. Gurnsey their costs in the matter of the contest of the said Will."
On June 2d, following, said respondents filed "memorandum of costs on Contest" of said will, the amount being $43.20. On June 6th contestant filed "notice of motion to retax costs" and also for an order "to strike out and eliminate the entire cost bill . . . upon the further ground and for the further reason that said cost bill was not prepared or served, or delivered or filed within the time required or allowed by law, or in accordance with law, or within any further time allowed by the court or adjudged thereof, or that said cost bill was prepared or served or delivered or filed before the entry of any judgment in said cause." It was recited in said notice that "said motion will be based upon the law in such cases made and provided, and upon the minutes and records of the court, and upon the papers in said cause, and upon testimony, to be produced on said hearing." Said motion was denied on June 26th and on July 19th contestant gave written notice of an appeal "from an order denying contestant's motion to retax and to strike *180 out the cost bill in said matter which said order was made and entered in the above-entitled matter on the 26th day of June, 1922, and from each and every part of said order."
No evidence is brought up to show that any item in the cost bill is improper. There is nothing to indicate that the bill was not served and filed in the time required by law. Indeed, the record, if sufficiently authenticated to be considered for the purpose, shows that the proceedings culminating in the order denying said motion were entirely regular.
The attack, though, of appellant is really directed against the judgment of dismissal, which we have hereinbefore set out. His contention is that a contest to revoke the probate of a will is a special proceeding (Estate of Joseph,
He summarizes his position as follows: "We claim that the judgment so entered was had and done without any authority of law, for the reason that when there was a withdrawal of the contest, or a dismissal thereof, or a failure to proceed further on the part of contestant, the matter was ended, and the court lost power to render any judgment between the parties, and since costs are but an incident to a judgment it is therefore powerless to render a judgment for the costs incurred therein."
[1] There are several answers to this contention. The most obvious is that he has not appealed from said judgment and he is in no position to complain of it. This judgment cannot be successfully assailed upon an appeal from an order refusing to strike out a cost bill. That would be to permit a collateral attack upon a judgment which is not void upon its face. *181
But if we concede that said section
Section
[2] By virtue of these provisions we think it cannot be questioned that the trial court became vested with the general authority that belongs to courts of record in matters of procedure. That it had inherent power to dismiss the action we entertain no doubt.
In Dupuy v. Shear,
In Hassey v. South S. F. Homestead etc. Assn.,
In People v. Jefferds,
It is also pointed out in Richards v. Bradley,
In Romero v. Snyder,
Assuredly, if the court possesses the power when the plaintiff fails to prosecute with reasonable diligence, there is greater reason for its existence and exercise when the plaintiff expressly abandons his cause and requests the court to dismiss the action.
[3] As to the judgment for costs, manifestly, the contestant is in no position to complain, since it was rendered at his instance. A party is not aggrieved by a consent judgment, or one which he has requested the court to decree.
We can conceive of nothing more to justify the court in entering judgment therein for proponents' costs and the order is affirmed.
Hart, J., and Finch, P. J., concurred.